Varano v. Jabor, 1st Cir. (1999)

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<pre> United States Court of Appeals 
For the First Circuit 
____________________ 
 No. 99-1094 
LISA A. VARANO, 
 Plaintiff, Appellant, 
 v.
 MICHAEL G. JABAR, D/B/A MIKE'S ROOFING
COMPANY; STERN
COMPANY, INC., 
Defendants, Appellees. 
 ____________________
 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR
THE DISTRICT OF MAINE [Hon. Gene
Carter, U.S. District Judge] 
____________________ 
 Before
 Stahl, Circuit Judge,
 John R. Gibson, Senior Circuit Judge,
 and Lynch, Circuit Judge.
 
_____________________ 
 William C. Knowles, with whom Gene R. Libby, Rita H. Logan and
 Verrill & Dana, LLP were on brief, for appellant. James Q.
Shirley, with whom Sheehan Phinney Bass + Green, P.A., Anna Barbara Hantz
and Gottesman and Hollis, P.A. were on brief, for appellee Michael G. Jabar
d/b/a Mike's Roofing Company. 
____________________ 
 November 24, 1999 
____________________
JOHN R. GIBSON, Senior Circuit Judge. Lisa Varano
 appeals from the judgment as a matter of law entered against her on her
products liability claim against Michael Jabar, and also from the judgment
entered against her on a jury verdict on her negligence claim. Varano claimed
she became ill from fumes released when Jabar, doing business as Mike's
Roofing, used an adhesive containing isocyanates to repair the roof above the
store where Varano was working. After Varano presented her case, the
 district court entered judgment as a matter of law against her on her strict
liability failure-to-warn claim because the court concluded that Jabar was not a
"seller" of the adhesive, which is a statutory element of Varano's claim under
Maine law. The court permitted Jabar to introduce evidence that he had used
the adhesive in the past without any problems. The court submitted Varano's
 negligence claim to the jury, but refused Varano's requested res ipsa
loquitur instruction on the ground that Varano had not adduced evidence that
would warrant the instruction. The jury returned a verdict for Jabar. On
appeal, Varano argues that the district court erred in entering judgment against
her on her strict liability claim, in permitting Jabar to introduce evidence of his
 past use of the adhesive without injuries, and in denying her requested res
ipsa loquitur instruction. We affirm. Varano testified that
on February 17, 1995, she was working in her office in the back of the Nautica
store in a mall in Kittery, Maine. She heard some banging on the roof of the
store, followed by the presence of a strong odor of glue or adhesive. She
 went outside the store and saw that employees of Jabar's company, Mike's
Roofing, were working on the roof. Back inside the store, Varano found that
the odor had grown stronger, so she called the property management company
to report the problem. As the day went on, the odor became stronger until
Varano could see a "vapor" and a "haze" in the room. 
By the next day, Varano had a sore throat and chest
 discomfort. She was admitted to the emergency room on March 2 and
 March 8, 1995 because she was experiencing chest pains and could not
breathe. On March 9, 1995, Jabar's employees were back at
work on the roof of the mall. When Varano arrived at work, one of her
 coworkers told her that the odor had returned. Varano again called the
management company to complain. In response, two of Jabar's employees

and Jabar's wife, Wendy Collins, came to the Nautica store. Varano asked
them what they were using on the roof. One of Jabar's employees left and
returned with a can of Firestone Splice Adhesive. He opened the can, and
Varano identified the odor as the one she had smelled in the store on February
17. After the incidents at the store in February and March
 1995, Varano was diagnosed with occupational asthma, induced by
 exposure to isocyanates. Splice Adhesive contains isocyanates. 
Varano sued Jabar, alleging a products liability claim for
failure to warn of the danger posed by exposure to Splice Adhesive and
negligence in failing to warn her. Varano's theory was that there was a
"release" of Splice on the roof that worked its way down through the decking of
the roof into the back of the Nautica store where Varano was working.
Jabar's expert testified that Varano could not have been exposed to levels of
isocyanates sufficient to cause asthma in connection with the use of Splice
 Adhesive on the roof. Jabar's medical expert testified that Varano's
medical condition was not caused by isocyanate exposure, but rather by
recurrent infections. The district court granted judgment as a matter of law
against Varano on the ground that Jabar was not a "seller" of Splice Adhesive
within the meaning of Maine's products liability statute, Me. Rev. Stat. Ann. tit.
14, 221 (West 1997). The court submitted Varano's negligence claim to the
 jury, which found for Jabar. 
I. 
Varano argues that the district court erred in entering
 judgment as a matter of law against her on her strict liability claim on the
ground that Jabar was not a seller of Splice Adhesive within the meaning of Me.
Rev. Stat. Ann. tit. 14, 221. We conclude that, whether or not Jabar was a
seller under Maine law, the court submitted to the jury the same elements in the
negligence instruction as Varano would have been entitled to under a strict
 liability failure-to-warn instruction. Therefore, any possible error in
denying Varano the chance to submit her strict liability failure-to-warn claim to
the jury was harmless. Varano's complaint pleaded a strict
liability claim based only on failure to warn of danger associated with the use
of Splice Adhesive. Varano's tendered strict liability instruction included
 a statement that the "roofing products may be defective and unreasonably
dangerous because of a failure to provide adequate warnings regarding potential
dangers involved in the use of the products." Varano's tendered instruction
did not contain any indication that the jury had to find that Jabar knew or
should have known of the danger to find Jabar liable for failure to warn of
 that danger. Jabar contends that, even assuming the district court erred in
failing to submit the strict liability failure-to-warn claim to the jury, the error is
harmless as a matter of law because the court instructed the jury on negligent
failure to warn. Jabar argues that the two claims are so similar under Maine
law that the jury's rejection of the negligence claim establishes that it would
 have also rejected the strict liability claim. In Cheshire
Medical Center v. W.R. Grace & Co., 49 F.3d 26, 32-33 (1st Cir. 1995), we
held that failure to submit a strict liability failure-to-warn instruction would be
harmless if the court instructed on a negligent failure-to-warn claim and if the
 strict liability duty to warn was no more stringent than the duty of prudent
care under New Hampshire law. The Maine Supreme
Judicial Court has stated that the duty imposed by Maine's products liability
statute, Me. Rev. Stat. Ann. tit. 14, 221, in a duty to warn context, is the
"responsibility to inform users and consumers of dangers about which [the
seller] either knows or should know at the time the product is sold."
 Bernier v. Raymark Indus., Inc., 516 A.2d 534, 540 (Me. 1986), quoted
in Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195, 197 (Me. 1990). "[T]his
aspect of strict liability bears a strong resemblance to a negligence action."
Lorfano, 569 A.2d at 196. The Maine court quoted the comments of
Professor Prosser, who stated that the two claims are the same, except that the
claim sounding in strict liability is subject to strict liability defenses and
other limitations on liability, rather than the defenses and limitations relevant to
negligence claims. Id. (quoting W. Prosser & W. Keeton, The Law of Torts
99, at 697 (5th ed. 1984)). Thus, while the Maine
Court indicated that there are differences in the defenses and limitations on
liability applicable to the two causes of action, both causes spring from an
identical duty of care: Regardless
of whether a failure to warn claim is phrased in terms of
negligence [or] strict liability, the analysis . . . is basically
the same. [T]he general rule [is] that the 
supplier of a product is liable to expected 
users for harm that results from foreseeable 
uses of the product if the supplier has reason 
to know that the product is dangerous and 
fails to exercise reasonable care to so inform 
the user. Pottle v. Up-Right, Inc., 628 A.2d 672, 675
(Me. 1993) (internal quotations omitted and emphasis added). 
Varano's proposed strict liability instruction did not include
the concept that Jabar would only be liable for failure to warn of dangers of
which he knew or should have known. On appeal, Varano continues to argue
that strict liability does not require a breach of a duty of care. However, under
Maine law it is clear that strict liability failure-to-warn cases do require breach
of such a duty. See Pottle, 628 A.2d at 675; Lorfano, 596 A.2d at 196.
We need not decide whether, on different facts, there might be some differences
between the strict liability failure-to-warn and negligent failure-to-warn claims
under Maine law; the only difference urged upon us in this case concerns
whether the strict liability failure-to-warn theory must include the concept that
the supplier knew or should have known of the danger posed by the defect.
We hold that it does, and that Varano's strict liability claim was therefore
subsumed within her negligence claim. See Pottle, 628 A.2d at 675; cf.
Cheshire Med. Ctr., 49 F.3d at 35 (where plaintiff did not tender a correct
instruction or object on the correct ground, we did not reach the argument that
there is some difference between negligent and strict liability failure to
 warn theories). Consequently, we need not reach the question of
 whether Jabar was a seller under the Maine products liability statute.
II. 
Varano next argues that the district court erred in allowing
Jabar to introduce evidence that he and his employees had used Splice Adhesive
in the past and had never experienced problems or had complaints. Varano
argues that this testimony was irrelevant, because Jabar contended at trial that
his employees did not use Splice Adhesive on February 17, 1995, but only
cleared ice and snow off the roof. In a similar vein, Varano argues that the
 nonoccurrence evidence was unduly prejudicial under Federal Rule of
 Evidence 403. Ordinarily, we review for abuse of discretion the district
court's relevance determination and its weighing of probative value versus
unfair prejudice. See Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 5, 10
(1st Cir. 1994). Here, because Varano only objected to the evidence by a
motion in limine and made no contemporaneous objection, we review for plain
error. See Clausen v. Sea-3, Inc., 21 F.3d 1181, 1190 (1st Cir. 1994).
Varano argues that the district court's denial of her motion in limine was
 sufficiently final to obviate the need for her to object at trial, but we see
nothing in the district court's summary denial of her motion that would excuse
her from the usual obligation to object at trial. Varano
says that since Jabar denies using the Splice on the date in question, evidence
of what happened on other occasions when he did use it is irrelevant. To the
contrary, such evidence is directly relevant to Varano's claim that Jabar's use
of Splice on February 17 caused her injuries. See Espeaignnette, 43 F.3d at
 9-10 (evidence that manufacturer had received no reports of other
 accidents relevant to causation). This evidence tends to show that even
if Jabar had used Splice on the roof, it would not have caused Varano's injuries.
This reasoning is not inconsistent with Jabar's contention that his employees
did not use Splice on February 17; rather, it is auxiliary to Jabar's principal
theory. The district court certainly did not commit plain error in admitting
evidence of prior use. Varano argues that it was unfairly prejudicial to let
 Jabar prove he had used Splice in the past without incident unless he
conceded that he used it on February 17. This is merely a variant on the
argument we have already rejected. 
III. 
Varano contends that the district court erred in denying her
requested res ipsa loquitur instruction. A district court is

bound to instruct the jury on all issues of fact raised by the evidence adduced at
trial. See Wilson v. Maritime Overseas Corp., 150 F.3d 1, 10 (1st Cir. 1998).
 The standard for determining whether
a factual issue is sufficiently contested to require an 
instruction is identical to the standard for 
determining whether a factual controversy 
prevents the entry of judgment as a matter of 
law. 
. . . . 
In neither situation may the court
weigh the evidence, make credibility determinations, or
 resolve conflicts in the proof. Instead, the 
court must determine whether the evidence 
presented at trial, along with all inferences 
that may reasonably be drawn therefrom, could 
plausibly support a finding for either party 
on any given issue of material fact. Id. Our review
of the district court's decision not to instruct on an issue is plenary. Id. If
the court erroneously fails to instruct on a material issue of fact, we still may
not grant a new trial on the basis of that error if the error is harmless. Id. at
 6. The right to a res ipsa loquitur instruction is
 determined by Maine law in this diversity case. See, e.g., DiPalma v.
Westinghouse Elec. Corp., 938 F.2d 1463, 1464-65 (1st Cir. 1991) (applying
Rhode Island law); Roln-Alvarado v. Municipality of San Juan, 1 F.3d 74, 79
(1st Cir. 1993) (applying Puerto Rico law). Under Maine law, the res ipsa
loquitur doctrine permits a finding of negligence in connection with an
unexplained event if the plaintiff can show (1) the event was of a kind which
ordinarily does not occur in the absence of negligence; (2) other responsible
 causes are sufficiently eliminated by the evidence; and (3) the indicated
negligence is within the scope of the defendant's duty to the plaintiff. See
Poulin v. Aquaboggan Waterslide, 567 A.2d 925, 926 (Me. 1989); Ginn v.
Penobscot Co., 334 A.2d 874, 878, 880 (Me. 1975). According to the
Restatement (Second) of Torts, "It is the function of the court to determine
whether the inference may reasonably be drawn by the jury, or whether it must
necessarily be drawn." Section 328D(2) (1965). The
district court denied the res ipsa loquitur instruction, stating: 
I think the evidence does not show that this
 accident could happen only as a result of the 
conduct on the part of the defendant, and that 
there is no showing, no basis on which a jury 
could conclude there is no other explanation 
[than] the conduct of the defendant in 
bringing about the injury complained of in 

this case. The evidence in this case
included possible alternative explanations for the odor in the Nautica store and
for Varano's medical condition. Where the record establishes possible
 explanations for the accident other than the defendant's negligence, res
ipsa loquitur does not apply. See Wellington Assocs., Inc. v. Capital Fire
Protection Co., 594 A.2d 1089, 1092 (Me. 1991); see also Sheltra v.
Rochefort, 667 A.2d 868, 870 (Me. 1995). The district court did not err in
concluding that the evidence did not warrant submitting a res ipsa loquitur
instruction to the jury. We affirm the judgment of the
district court.</pre>
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management company to complain. In response, two of Jabar's <br>employees

requested res ipsa loquitur instruction. <br> A district court is

bringing about the injury complained of in <br>

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